A Liberal Lawyer Gives Up on Preventing Murder

Rosa Brooks’ article in Foreign Policy is called “There is no such thing as peacetime.” Brooks is a law professor who has testified before Congress to the effect that if a drone war is labeled a proper war then blowing children apart with missiles is legal, but that if it’s not properly a war then the same action is murder.

Rosa Brooks has apparently come to see the problem with that distinction. How can a secret presidential memo in a drawer somewhere, that she and her colleagues have empowered to determine whether or not an action is part of a war, actually decide on the legitimacy of sending hellfire missiles into houses and restaurants, the behavior of futuristic gangsters on steroids?

But Brooks’ solution is not to call murder murder and seek to end it. Rather she proposes to eliminate the distinction between wartime laws and peacetime laws by merging them, so that some of what’s illegal in peacetime is just always illegal, and some of what gets a pass in wartime just always gets a pass (she actually only mentions the latter in any specifics). I suppose any simplifying proposal from a lawyer is a noble one, as it does eliminate work for the legal profession. But this is not a proposal to uphold the rule of law or to empower people with legal self-governance. This is a proposal to give up, to throw in the towel on civilization, to accept war as the norm, and to treat murder as a policy in need of constant monitoring and tweaking with reforms around the edges.

“A decade and a half after 9/11,” Brooks writes, “the war on terror continues to open new fronts from Syria to Libya to Nigeria. And it’s hard to see this changing under a Hillary Clinton or Jeb Bush administration. Perpetual war is unlikely to end in our lifetimes.” If that knocked you down, please get back up and consider what’s so flooringly awful about it. Because the U.S. government is waging endless war, we shouldn’t try to stop it. Because it is proposing for its highest profile office for two years from now various hacks who will continue the permawar, we shouldn’t try to stop it for two years or the next four or ever again.

“For much of human history,” Brooks claims, “war has been the norm and peace has been the exception, though Americans have been largely blind to this reality. Foreign attacks on U.S. soil have been few and far between, and for most of U.S. history, the country’s wars have been fought by a small and highly professionalized military, making them largely invisible to the bulk of the American population. . . . [A]s legal historian Mary Dudziak notes in her fine book War Time, ‘It is only through forgetting the small wars that so much of American history is remembered as peacetime.'”

Yes but it is only through shortsightedness that U.S. writers can ignore the other 95 percent of humanity which is represented by governments that do not wage war to anywhere near the extent that Washington does — as well as ignoring the 95% of human existence that was pre-history and pre-war. War has been sporadic in human existence since its creation, more absent than present. Nations that have known war have abandoned it. Japan is currently trying to maintain its second lengthy period of peace. War is not the norm in most countries. The proliferation of drones may, however, help it become so. That war is becoming the norm is an idea promoted even by the United Nations’ reports on drones. The policy of drone murder in the United States has been allowed to remove war from public, legislative, judicial, or international oversight. The choice before us is whether to accept that and attempt the truly quixotic task of mitigating the damage, or whether to reject it as entirely unacceptable.

Brooks presents the contrast between war and peace standards quite well: “The police, for instance, can’t just decide to bomb an apartment building in which suspected criminals lie sleeping, and they can’t write off the deaths of innocent people as ‘collateral damage.’ In peacetime, the intentional destruction of private property and severe restrictions on individual liberties are also impermissible. Wartime turns these rules upside down. Actions that are considered both immoral and illegal in peacetime are permissible — even praiseworthy — in wartime.”

But isn’t it right to consider murder immoral and illegal? When the drone murders are stripped of the protection of “wartime” flags and music, doesn’t it become obvious that they are counterproductive on their own terms as well as damaging to their victims, to our civil liberties, to the rule of law? Not to Brooks who wants to “develop better mechanisms to prevent arbitrariness, mistake, and abuse in targeted killings.” Listen to that language. Try to distinguish an abusive from a non-abusive targeted killing, I dare you. I don’t think it can be done in under 6 years of law school, and even then trouble sleeping at night might result.

Should we do away with the difference between laws of war and peace? Of course we should. But that means that the people in Guantanamo should have rights, not that you should lose yours. That means that people living far away should have rights, not that the local police should get to kill you with their war weapons. That means an end to secret torture prisons abroad, not the opening of new ones in Chicago. There should be one set of laws and it should include the nations’ laws against murder. It should include the Kellogg-Briand Pact. It should include the U.N. Charter until a better institution replaces the U.N. It should include universal support for an independent International Court of Justice and International Criminal Court that prosecutes the crime of war, not just “war crimes.”

The drones buzzing around the French nuclear plants seem to bother Brooks less than they do me. Perhaps the growing nuclear danger that lies in the proliferation of nuclear energy and weaponry can make the point. The reality is not that there is no such thing as peace time, but rather that there is no such thing as wartime. If permawar is allowed to continue, the human species that dumps $2 trillion into this greatest environmental destroyer every year, rather than into useful protection against real dangers, will cease to exist.